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Monday, April 03, 2006

How To End The Gay Marriage Debate

Georgetown constitutional law professor Jonathan Turley offers a practical solution to the gay marriage debate: civil unions. The problem with marriage licenses issued by the government Turley argues is that they are used "to convey a religious or moral meaning." The state's real "interest in marriage concerns its legal meaning." He writes:

It is the agreement itself, not its inherent religious meaning, that compels the registry of marriages by the government. Once married, the legal rights and obligations of the couple change in areas ranging from taxes to inheritance to personal injury to testimonial privileges.

Turley points out contradictions in the current policing of marriages by government. "While the government criminalizes the marriage of same-sex couples without official licenses (denied to them as a matter of policy), it does not police religious practices governing divorces," Turley says. He believes we should leave "the moral validity of a marriage" to religious organizations. Let each person decide according to the dictates of their own faith whether to marry in a religious ceremony he argues.

"The government's interest and role would be confined to enforcing the civil contract, as it would any other civil agreement," Turley explains. "The government should address that aspect of marriage that concerns its insular needs: confirming the legal obligations of consenting adults," Turley continues. "As for our politicians, there are levees to be rebuilt, corruption to end and wars to win." Mindful of the political advantages of the gay marriage debate, Turley deadpans, "Of course, this solution would deprive both sides of the debate of a controversy that has been a political and financial windfall." Reminding us of the constitutional separation of church and state, Turley concludes, "Nonetheless, the public certification of the moral relationships is not the call of government; it is the call of the faithful. It is time we move beyond moral licensing by the government and return marriage to its proper realm: in the churches, temples, mosques, and the hearts of every citizen."

Turley's idea has a great deal of merit and is arguably the most fair and constitutionally compatible approach for resolving this debate. We shouldn't forget that the Puritans fled England, in part, over the Anglican Church stance on what constituted a legitimate marriage. Early colonists were reluctant to have government perform any role in marriages, even to issue a license, because they wanted to be able to apply their own religious beliefs to define marriage without any government interference. It is against that backdrop that our founders opted to include the separation clause in the U.S. Constitution's Bill of Rights.

As an aside, France in recent years assuaged its gay population by legalizing civil unions. To make it fair, the French made civil unions available to straight and gay couples alike. The unexpected result was that civil unions became very popular among straight couples, who preferred the non-sectarian civil unions to the traditional state-recognized marriage license.

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